34 F. 396 -

34 F1d 396

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Case Text

39B

FEDEttAL nEPORTER.

element. Tested by this rule, t 'think the defendants are guilty of infringement in the present case. The' sewing-machine of complainant is not patented as an entirety, but different parts of the machine are covered by different patents. Claims 1 and 2 of patent No. cover an improved shuttle-driver, and the defendant makes. and sells the same in a Sin/l;er machine. The second claim ofletters patdevice to btl ent No. 274,359 is for a shuttle-race for an oscillating shuttle, provided with an elastic side or flange. The shuttle-race cannot be used in the Singer I M machine without the elastic flange. The defendant makes the shuttle-race for use in such machine. He therefore makes the rnajorpartof the patented combination, intending that it should be provided with an elastic flange. and useo. in complainant's machine.' Claims 3 and 4 of patent No. 229,629, and claim 6 of patent 208,838, are combination Claims. 1'he nlain elements found in these patented combinations are made and sold by defen,dant for use in the Singer machine. Under the authority of Wilson \T. Simpson and other cases this cannot be dorie. . The defense of multifariousness is also relied upon. Tpe defendant Duokworthhas answered, proofs have been taken, and a hearing had upon the merits of the bill. I do not see in what respect the defendant suffers any injury by having these causes of action heard together. All upon relate to one machine, and the defendant is not prejudiced joinder. Whether a bill is multifarious or not must depend upono its own circumstances, and must necessarily be left to the discretion of the oourt. Oliver v. Pratt, 3 How. 333, 412. Upon the whole I think a decree should be entered for the complainantj and it is so ordered. Decree for complainant. .

Where the vendor of goods aboard a vessel has exercIsed his right of stoppage in tramitu while the vessel was out, the vessel is not liable in damages .for refusing to deliver the goods to the vendee upon demand and production of. the bill of lading at the port of destination; and this is especially the case where the vendee, prior to filing the libel, has seized the goods under a writ of statutory detinue issued by the state court.

In Admiralty. On exceptions to libel. Wilson & Lozano, a firm engaged in the retail dry goods business in Mobile, Ala., purchased on credit from Tefft, Weller & Co., of New York, a number of packages of merchandise, and these were shipped by Vidette, of the New York & Mobile Steam-Ship :::ine, in

THE VIDETTE.

397

the latter part of January, 1887, consigned to libelants, and bills oflnding were also duly forwarded them at Mobile. On presentation of the bills of lading, February 11, 1887, by libelants to said ship at Mobile, delivery of the goods was refused by the ship's agent on the ground of contrary instructions received from shippers, sent while the vessel was out. On February 15th, Wilson & Lozano brought suit in the city court of Mobile in statutory detinue, causing the sheriff to seize the goods, and on the same day filed this libel for $5,500 damages in business from detention of necessary goods, injury to business standing, and for expenses of the detinue suit. Lombard, Ayres & Co., intervened as claimants and charterers. G. L. &: H. T. Smith, for libelants. R. H. Olarke, for complainants. TOULMIN, J., (after stating facts as above.) A seller, who has sent goods to a buyer, at a distance, may stop them at anytime before they'reach the buyer, on the ground of the insolvency of the buyer. The right to do this,is called the right of stoppage in transitu. Pars. Mere. Law, 60; 2 Benj.Sales, § 1229; Loeb v. Peters, 63 Ala. 243; IPritch. Adm. Dig. 541. Nothing short of a bonafide sale of the goods for value, or the possession of them by the ,'endee, can prevent the vendor's right of stoppage in transitu. Loeb v. Peters, supra; Lesasmer v. Southwestern, 2 Woods, 35. A notice of stoppage in transitu by the vendor to the carrier issufficient to charge the carrier. And upon the vendor asserting his right to stop the goods, and demanding them of the canier while the right of stoppage in tranmtu continues, the carrier is bound to redeliver them, and will become liable for a conversion of the goods if he refuses to reqeliver them to the vendor, and delivers them to the vendee. His refusal to redeliver on demand is sufficient evidence of conversion. 1 Pritch. Adm. Dig. 541; T Pars. Shipp. &Adrn. 522; 5 Wait, Act. & Def. 615, and authorities there cited;. Hutch. Carr. § 420. It is held by some authorities that in case of doubt as to the vendor's right the carrier's duty is to file ,a bill of interpleader. 1 Pritch. Adm. Dig. 514. And. in 1 Pars. Shipp. & Adm. 522, itis said that if both vendor and vendee claim th,e goods of the carrier, he should ask an indemnity. There is, however, no. legal obligation on either party to give such indemnity. But if it is 'asked and refused, and the carrier thereupon refuses to deliver the goods, the rightful claimant could recover them or their value; but nothing by way of costs or damages for the detention. But all the authorities agree that it is the duty of the carrier to redeliver the goods to the vendor on his giving notice of stoppage in tranmtu, and making demand for them. ,And it is held that for his refusal to do so he is liable for a conversion of them. See authorities cited supra. Upon the exercise of the right of stoppage by notice to the carrier the buyer loses the right to take possessionof the goods under the bill of lading. 2 Benj. Sales, § 1287, and note. The' effect of the notice is to revest the .vendor:s possession. 5 Wait, Act. & Def. 616, 618; 2 Benj. Sales, § 1295. And the carrier has no right to say that he will' retain the goods fordelhoeryto the true

.6wii61' 'aCterftheconflicting settled.213enj. Sales, § 1281; Storr, Bailm. § 58p.' I [foqnd' but one authority, and that atext.wlIiter, Sa,les,)wb,icn, ",balds that the carrier delivers the goods t() the vendor at ,bis, would probably be responsible to the vendoo·thereforifthe was wrongful. But I have found n? ,case where, a: court has followeq.,thil' rule.· It is said in the case of The ,Tigre$$,d3rown. & L. 45; (Whioh with approval in the opinion .of the in the case of The $.; H., Pr.a,Yi in 27 Fed. Rep. 474,) that "the. velldor ;exercises his right of, stoppage in transitu at his own peril; .and,i<t1sjincmmbent on the to that right so soon as he is satisfied that it is the vendor who claims the goods, unless he (the master) is aware of a legal defeasaqee of the vendor's clai!ll." The seHer, who stops the goods, takes the risk on himself, and if he stops them wrongfully, would doubtless be answerable for any damages the buyer thereby. 1 Shipp. & Adm., 518\ , ThtHluestjon"nQw considere(} pot whether thest,oppagein transitu ;l).ere was wrongfulj' and whilt damages the libelants have sustained tborebY,but whetl,1,el'j (the goods having i>een stppped in transitu by the .scl.lers,);theilibelantscan :repover damages from, the vessel for the non.delivery of.thegoods to them, on the bill of lading. 'The libelants, .intheir ellliJn damages. for,.a, breac,h of contract in tIl at the vessel .refused tp,deliverthe goods The, libel, howthe goods ,to libelants was ,beca!1se J}f' tilel$tQppage in trans:itu, by the sellers, Teffl, Weller & Co., to .whol11 ilaWl :lllade it the vessel's duty to redllliver the goods on their llotice.. iI;,hllNeJoundbut one case directly Ln point, and that is a case justlike this., "There the vendeeo( 6; of clay brought suit on a bill of lading,agaillst t,be vessel to .repover damagE'S for non-delivery of the ·. ,Olle: Hayl:J.s was the vendor, and before the delivery ofthe cargo totb,elibelant reqpired the.rMstero(the vel>:lel not to,llllljver it to libel""nt, asserting the insolvency PI' lihelantawi tpe nOll-payment of the price ,of the, cargo. . Gourt says: ,: "Hare;Hlj.yes was'the the goOds; be had not been paid by the libelant;thtlrewas no Jegal defeasance of the vendor's claim anc;lthe v¢ndor de· manded, thegood,s iUpo;n/ the ground, ()f the insol veney of the vendee. These jqstifieu the master in re,fu,sing tu \Ieli vert1le ,goods to libelant. it good defen,se to such all actwn as this." ''1,'he E. H. Pray, 27 Fed.Hep}74;.:;'r:,: , , " , Inthec/lse;of,Schmidtv. The PenM!Jlvania,4 Fed. Rep. 548, the retport ofthe QpinionofthejuJge trying the case is ,so that it is ,difficulrto determine what his views were except on the question of dlllllBut it-apPears that the court held, the detenti,oD of the goods by ',the,vessel,wl'\s, libelant wasentidedto recover dam· .ages for suoh detention. This,doubtleas, was, on the ground that th,e rclaimant, tva;! tbeassignee: of .the. bill 'of lading,anda purchaser for value; a..lega},'deftlasance,Qf(tbevendor's claim, of which "ter of the v.eaSl:ll hadbeeu and detention of the goo!is. was " There the in, transitu was concedtXl to hav,e

, 'THE <:lHELMSFORD.

399

been wrongfu.,arid was recalled, and the goods were in the possession of the vessel when the libel was filed. But however this may be, as the law makes it the duty of the vessel to redeliver the goods to the seller on no';' tice by him ofa stoppage in transitu, it seems to me there can be noliaability on the vessel for ,the performance of this legal duty, and it should not be held liable in damages for a refusal to deliver the goods to the buyer. Besides, the libel shows that the libelants commenced an action of detinue for the goods before filing their libel. Are they not thereby concluded from' maintaining this action, which is inconsistent and in'Y compatible with the former remedy to which th resorted? lnawrance 00. v. CJochran; 27 Ala. 228. My opinion is that on principle and the weight of authority this libel cannot be maintained; and as the exceptions to it raise the point here decided, it is unnecessary for me to sider the case on its merits. The exceptions to the libel are therefore sustained, and the libel is dismissed at libelant's costs.

TIm

MAYO

CHELMSFORD.· THE CHEI,MSFORD.

et al. 'V.

c'Di8triCt' Court, 8.' D.Penn8ylvania. February 27, 1888.)
1.

2.

There is no implied maritime lien against a vessel for supplies ' , " , her at her home port.

MARITIME

LIENs-SuPPLms-,HoME, PORT.

,',

,,' ,; ,

. 'There'is an implied maritime lien against a vessel for supplies furnlshed'by one at the home port, at the owner's request, and shipped to the vessel el8ewhere., . 8. TAB-rna DRAFT. Takinga;draft for supplies furnished to a vessel In a foreign port 18 not a Ilurrenderof, the right to alien for the same., The right to the lien is asecurity, anll pa8Se$ with a qraft ,to the indorsee. The'home port of a vessel is where her owner has a bona fide residence. 'and this rule binds all who know where the owner resides, even though the,vesllel has a rep;ister, anl". ul)der a ;foreign flag. , " , The deCisions. of other district, courts in similar cases will be followed' in order td secUl'" uniformitY,althongh those decisions do not seem, to be ba8ed ",' upon SOUl1d principlas.